Posted on 08/21/2007 8:14:49 AM PDT by Sub-Driver
Illegal Presence in US Not A Crime, Court Says By Jeff Golimowski CNSNews.com Senior Staff Writer August 21, 2007
(CNSNews.com) - If you can get past the border guards and into the United States, you're no longer violating the law, according to a Kansas Court of Appeals decision.
The ruling comes after an illegal immigrant, Nicholas Martinez, was sentenced to a year in jail after pleading guilty to possession of cocaine and endangering a child. Court documents say Martinez was caught in an undercover sting by detectives in Barton County, Kansas (about 120 miles northwest of Wichita), using his young son to help sell cocaine.
Under Kansas law, the charges (and plea bargain) would have landed Martinez on probation. But the judge in the case said the defendant couldn't be put on probation because of his immigration status.
"Mr. Martinez is illegally in the country and is in violation of the probation rules right from the start if I place him on probation," court documents quoted Judge Hannelore Kitts as saying. "He has to comply with all the conditions of the probation and he can't do that because he's in violation of the law not to violate any federal or state laws."
The judge then rejected the plea agreement's sentencing recommendation and ordered Martinez to spend a year in jail.
(Excerpt) Read more at cnsnews.com ...
Deport all illegal aliens, H311 ! Let’s start deporting all the lawyers and judges that come up with this Cr@p, first!
Thus.. re-defining of laws could end up being advantageous to taxpayrers.
This reminds me of the Klintoonian English: it depends on the ILLEGAL definition of the word "ILLEGAL".
Oh boy! We had better have a GOP WH in '08 before our language is altered forever!
The remedy you suggest is still at hand only because the judge who was overruled made sure that this offender could still be found if she was overturned; as you say, arrest him now on illegal entry charges and hold him for ICE.
Tomorrow, rewrite the law.
Just imagine the precedent: Your honor, it was illegal for me to break and to enter her home, but my continued presence in the home, hanging out on her sofa, is not.
What about murder? If you aren’t actually caught DOING the crime, you should be fine thereafter. Rape too. Any crime that can be completed swiftly is not prosecutable then. The jails will be full of tax evaders and speeders while the killers and rapists go free.
At what point are you ACTUALLY doing the “evading” of taxes?
Do they have to catch you right at the moment you sign the forms?
Keep in mind, the “magnificent jurist,” hails from Kansas (Russell, KS)
Isn’t that like saying “while he committed arson and burnt down a building, he is not currently setting a building on fire and so he is not an arsonist and is not currently committing any crime”?
Good, then throw the deadbeat out. Then he won't be violating any federal or state laws.
Not really ...
Lets leave aside the laughable notion that, having entered illegally, he is no longer here illegally (if he's not here illegally, by what right does INS deport him?).
Take it up with the Supremes. The judge cites a 1958 USSC decision on that point: the actual border crossing is illegal and punishable by deportation. But the court also said that the crime of illegal border crossing isn't somehow made worse by the fact that the crosser stayed here: it's a one-shot deal, not a continuing crime.
The US Code says, however, that once a person has been deported and comes back, it is a felony just to be back here. It appears that Martinez does not fit in this category.
The requirement is that he remain in Kansas during his probation. This means that being deported would itself violate the terms of his probation, as it would remove him from the state of Kansas.
Well, yes, and the judge discusses that topic as well:
We do not presume to breach the line between interpreting and applying the law on one hand and establishing public policy on the other. We leave the latter task to our legislative branch. But our legislature, in enacting K.S.A. 2006 Supp. 21-4610(a), has mandated a provision in every probation plan that the defendant, during the term of probation, not violate the laws the United States. So long as this remains the law of our state, we must refrain from any activity that undermines its clear and unequivocal intent. Further, the sentencing court must be permitted to recognize an inherent conflict which may impede a defendant's successful compliance with a plan of probation which requires the defendant's continued presence in the jurisdiction and the defendant's compliance with the laws of the United States throughout the term of probation. Thus, if Martinez is present in the United States in violation of 8 U.S.C. § 1326 (previously deported), the district court may consider this fact in determining whether he could successfully complete a plan of probation.
But please note: the whole point of this ruling is quite a bit different from what the headline and posts would suggest. The appeal apparently turns on the technical principle of "departure," which I take to mean that the judge "departs" from normal sentencing guidelines.
On that matter, and contrary to Kansas law, the trial judge failed to provide proper notice of its intent to "depart" -- she simply announced at the sentencing hearing that she going to do so.
The real kicker is this: the guy's not being let off of anything -- he's still convicted, and will be resentenced.
Right. The judge says that because having the stolen money wasn't specifically addressed by law, that it isn't a crime.
Heh. You have to prosecute a murderer while the bullet is in the air. Once the bullet makes impact and the victim dies, the criminal is a former murderer and current resident in good standing.
He's convicted of cocaine posession and endangering a child. He belongs in prison. The technical aspects of this case turn on whether he should receive probation, and the judge rightly notes that there's a gap in the laws in Martinez's case.
I think the probable result will be that he'll serve his time (whatever it ends up being), and then have him deported. That would be the most sensible result.
Don't be silly.
When you're put on trial for murder or rape, you're put on trial for the specific act(s) of murder or rape that you are charged with committing.
You're not put on trial for the fact that you happened to remain alive and in the area after having committed the crimes with which you're charged.
Laws: Cases and Codes : U.S. Code : Title 8 : Section 1325
* United States Code
o TITLE 8 - ALIENS AND NATIONALITY
+ CHAPTER 12 - IMMIGRATION AND NATIONALITY
# SUBCHAPTER II - IMMIGRATION
* PART VIII - GENERAL PENALTY PROVISIONS
U.S. Code as of: 01/03/05
Section 1325. Improper entry by alien
(a) Improper time or place; avoidance of examination or inspection;
misrepresentation and concealment of facts
Any alien who (1) enters or attempts to enter the United States
at any time or place other than as designated by immigration
officers, or (2) eludes examination or inspection by immigration
officers, or (3) attempts to enter or obtains entry to the United
States by a willfully false or misleading representation or the
willful concealment of a material fact, shall, for the first
commission of any such offense, be fined under title 18 or
imprisoned not more than 6 months, or both, and, for a subsequent
commission of any such offense, be fined under title 18, or
imprisoned not more than 2 years, or both.
(b) Improper time or place; civil penalties
Any alien who is apprehended while entering (or attempting to
enter) the United States at a time or place other than as
designated by immigration officers shall be subject to a civil
penalty of -
(1) at least $50 and not more than $250 for each such entry (or
attempted entry); or
(2) twice the amount specified in paragraph (1) in the case of
an alien who has been previously subject to a civil penalty under
this subsection.
http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=8&sec=1325
Ridiculous interpretation of this section by the lawyers/judges. Illegal entry has happened if the illegal alien is IN THE COUNTRY. If a federal crime has been committed, it can be prosecuted. So what if there is no law that specifically states ‘presence in US is a crime’? That doesn’t negate the crimes committed. If someone commits any other federal crime, they need not be caught in the act by federal agents for the crime to be prosecuted.
But the judge is correct, and he cites a 1958 US Supreme Court decision to back it up.
If you look at it, the law is very specific on the terms of the crime. Crossing the border is where the crime occurs, and a person can be punished for that crime. Under the law you cited, simply being here after the commission of that crime does not constitute an additional crime.
The judge makes clear that Section 1326 makes it a felony to remain here, if you cross the border after having been previously deported.
Is it a loophole in the law? Probably. But the judge is correct in his interpretation.
Now all we have to worry about is the 20 million already here who can't be prosecuted because of the expos facto nature of their "crime".
Regards,
GtG
PS My head hurts!
Thanks for explaining this. All of this is complex, frustrating, etc, etc, etc.
What good would that do, though? Would you propose to imprison them here, or would you still just deport them? And if you made it a felony ... I believe the 14th Amendment says that illegals charged with such a felony would have a right to trial, etc.:
"... nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
(Note that the Supreme Court decided about 100 years ago that the scope of the term any person is very broad, and includes non-citizens.)
All in all, I think the practical difficulties of making illegal entry a felony far outweigh the benefits. As a practical matter, Wouldn't you just end up deporting them ... in exactly the same way we're supposed to do now? There doesn't seem to be much value added.
Now all we have to worry about is the 20 million already here who can't be prosecuted because of the expos facto nature of their "crime".
It's not ex post facto. They're already guilty of illegally crossing the border, and can be deported on that basis.
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